Court File and Parties

Court File No.: Whitby 2860 5118350Z Date: 2013-03-14 Ontario Court of Justice

Between: Regional Municipality of Durham — and — Chelsea Colombo

Before: Justice of the Peace M. Coopersmith

Heard: January 24, 2013

Reasons for Judgment Released: March 14, 2013

Counsel:

• Ms. T. Best for the prosecution
• Mr. A. LaPlante for the defendant, Chelsea Colombo

JUSTICE OF THE PEACE COOPERSMITH:

I. CHARGE AND STATUTORY PROVISION

[1] On June 28, 2012, as a result of a two-vehicle collision at the intersection of King Street and Cadillac Avenue, in the City of Oshawa, the defendant, Chelsea Colombo, was charged with "Turn not in Safety", contrary to subsection 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended. Subsection 142(1) reads:

Signal for left or right turn – The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

[2] The trial took place on January 24, 2013. The prosecution presented two witnesses: Ms. Sandra Norman, who drove the motor vehicle that collided with that of the defendant, and Durham Regional Police Officer Chad Lee, who was on duty at the Collision Reporting Centre on June 28, 2012. The defence agent called upon the defendant to give evidence.

II. EVIDENCE OF WITNESSES

(i) Sandra Norman's Evidence

[3] At around 3:00 p.m. on June 28, 2012, Sandra Norman was driving her motor vehicle eastbound on King Street in Oshawa. She was in the furthest lane to the left (Lane 1), approaching Cadillac Avenue. At this location, King Street is a one-way street, with four eastbound lanes. Cadillac Avenue runs north and south across King Street and has one lane northbound and one lane southbound. King Street is a through street, while there are stop signs for vehicles going both northbound and southbound on Cadillac at its intersection with King Street.

[4] It was a clear day and Ms. Norman was driving about 60 kilometres per hour. She was coming from a downtown Oshawa law firm, on her way home. Traffic was not light, but it was not heavy, with cars proceeding in the lanes around Ms. Norman's vehicle. She noticed that the motor vehicle directly in front of her had a licence plate "PCARR" and recognized this as belonging to a friend of her mother.

[5] As Ms. Norman approached Cadillac Avenue, a red Volkswagen 'Beetle' came from Ms. Norman's right side and crossed in front of her—between her and the vehicle with the PCARR plate. The red motor vehicle, later determined to be driven by the defendant, was turning left and was perpendicular to Ms. Norman's vehicle when Ms. Norman first saw it. Ms. Norman slammed on her brakes and veered to the left to avoid hitting the red vehicle. It had given Ms. Norman no indication that it was turning left onto Cadillac Avenue. Had she not veered to the left, Ms. Norman believes that she would have t-boned the defendant's vehicle. She was not aware of the defendant's motor vehicle until she saw it appear in front of her and just before she collided into it. The front right hood and fender of her vehicle collided with the left rear wheel well area of the defendant's motor vehicle, causing $5,500 in damage to Ms. Norman's vehicle. She ended up half on Cadillac Avenue and half on King Street.

[6] Both Ms. Norman and the defendant stopped their vehicles on the side of Cadillac Avenue, exited to check the damage and make sure everyone was alright. The defendant's passenger had a GPS and the defendant told Ms. Norman that her GPS said to turn left, which she did. Hence, Ms. Norman felt confident that the defendant had not come from Cadillac Avenue south of King Street, attempting to proceed across King Street to the part of Cadillac north of King Street. The defendant had been coming from a nursing exam and told Ms. Norman she was not familiar with the roads in that area. Since there were no personal injuries, both Ms. Norman and the defendant proceeded to the Collision Reporting Centre.

(ii) Evidence of Durham Regional Police Officer Chad Lee

[7] Officer Lee was on duty at the Collision Reporting Centre when both Ms. Norman and the defendant arrived just after 4 p.m. and 4:40 p.m. respectively. He confirmed the identification of the drivers of the two motor vehicles that had collided at the intersection of King Street and Cadillac Avenue in Oshawa earlier that day. He took statements from both drivers and observed the damage to each vehicle, which evidence was consistent with the testimonies of the other two witnesses. Following his review of the situation and information provided to him, he laid the charge that brings the defendant before this Court.

(iii) Evidence of the Defendant, Chelsea Colombo

[8] The defendant has just completed a nursing exam, then drove to Durham Medical Supply, located at 242 King Street East, which is the former site of the Oshawa Ontario Court of Justice. She exited the medical supply driveway and proceeded eastbound on the one-way King Street. She was on her way home in the Town of Ajax, which is west of Oshawa. She stated that after exiting the driveway on the north side of King Street, she stayed in the left lane, intending to turn left on Cadillac Avenue. Her passenger had the GPS and was telling the defendant where to go, although she said she was familiar with the area. A friend of the defendant lived on Cadillac Avenue; hence, she chose that street to eventually hook up to Bond Street—a one-way westbound road. As she approached Cadillac, she signalled her left turn. She had not noticed any other motor vehicles around her and no motor vehicles which would stop her freely turning left. She did not see Ms. Norman's car behind her, as her focus was on the road ahead. As the defendant was making her left turn onto Cadillac Avenue and was half-way through the intersection, Ms. Norman's right front bumper hit the defendant's back left bumper, pushing her further onto Cadillac Avenue. The defendant had been facing north at the time of the collision, while Ms. Norman was facing in a north-easterly direction.

[9] The defendant never saw the vehicle bearing licence plate PCARR. She was travelling at about 60 kilometres per hour and gradually slowed to 20 kilometres per hour to make her left turn onto Cadillac. She stated that Cadillac Avenue was approximately 100 to 150 feet from the medical supply store and she started to gradually slow down from 60 kilometres per hour to 20 kilometres per hour when she was approximately 20 feet from the intersection at Cadillac Avenue. She used the GPS just to be sure of where she was going because she is not often in this area of Oshawa where there are many one-way streets.

[10] The defendant's testimony on where the vehicles sustained damage was consistent with that of the two witnesses called by the prosecution. When asked how, with the defendant in the left lane ahead of Ms. Norman, the rear left of her vehicle and not the rear right was damaged, the defendant assumed that Ms. Norman was following too closely and tried to make the turn with her to avoid hitting her, but it did not work as Ms. Norman's vehicle hit hers. The prosecutor advised the defendant that Ms. Norman never said she turned to the left, but had merely veered to the left as the defendant cut across in front of Ms. Norman's path and further, the defendant could not assume the defendant was following too closely.

[11] When asked why the defendant did not turn left on the first major intersection east of the medical supply store, that is, Ritson Street, in order to hook up with westbound Bond Street, the defendant said she just did not think of it. She simply chose to proceed further east to Cadillac Avenue, prior to going north to hook into westbound Bond Street.

III. SUBMISSIONS

[12] The defence agent advised that the defendant chose to turn left onto Cadillac Avenue because she had a friend who lived on that street. At no time in her statement at the Collision Reporting Centre did she advise the police officer in which lane she was driving on King Street, nor was she asked. The issue is whether or not the defendant made an unsafe turn off of King Street and left onto Cadillac Avenue. The prosecution would say, yes, she was turning from the wrong lane across the path of Ms. Norman's vehicle. However, the defendant testified that she was in Lane 1 eastbound on King at all times, never changing lanes, and she did not make an unsafe turn, as she slowed and signalled her intention to turn left onto Cadillac Avenue. Both Ms. Norman and the defendant appeared credible and the defence agent submitted that the Court should accept the defendant's testimony or, at least find reasonable doubt and dismiss the charge.

[13] Furthermore, the damage to the two vehicles coincides with both sides of the story. Hence, in applying Regina v. W.D., [1991] 1 S.C.R. 742, the agent submits that the onus of proving the defendant's guilt remains with the prosecution; it does not rest on the defendant to prove her innocence. Hence, the charge against the defendant should be dismissed.

[14] The prosecution submits that the physical evidence does not support the defendant's version of events; that is, that she was driving in front of Ms. Norman in Lane 1 and making her left turn from that lane. Instead, the damage to the vehicles supports the defendant being in the lane just to the right of Lane 1 and cutting over in front of Ms. Norman's vehicle in Lane 1, to make her left turn. Ms. Norman's testimony of recognizing the vehicle with plate PCARR directly in front of her along King Street was credible and reliable. Furthermore, it makes no sense that the defendant did not take Ritson Road, the first major road to the east of the medical supply store, but instead proceeded east to Cadillac Avenue to link up to a westbound street. Despite the defendant saying she was familiar with the area, her conduct was indicative of not knowing the one-way streets or where she was going.

IV. ANALYSIS AND FINDINGS

[15] There is no doubt I must apply the provisions of Regina v. W.D., supra. It provides that if I accept the defence evidence as it is a complete denial of an essential element of the offence, I would dismiss the charge. Further, even if I did not accept the defence evidence, I would have to go on to consider whether or not it raised a reasonable doubt and if so dismiss the charge as well. It would be only if I rejected the defence evidence, as there was convincing credible evidence that it was untruthful or unreliable, that I would go on to the third step in R. v. W.D., supra, and consider all of the un-rejected evidence in this matter, to ensure there was evidence that I did accept that established the defendant's guilt on the charge before the Court beyond a reasonable doubt.

[16] These are applications of our basic principles that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt, that the burden rests on the prosecution throughout to prove that guilt, and that there is a very high burden to establish the defendant's guilt.

[17] I must, therefore, assess the evidence to determine that upon which I intend to rely. I am guided by Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.), a case relied on over the years at every court level. At paragraph 11, Justice O'Halloran writes:

"… The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. …"

[18] I do not accept the defendant's evidence for the following reasons. Firstly, contrary to her testimony that she was familiar with the area around King Street and Cadillac Avenue in Oshawa, I am not satisfied that, in fact she was. She needed the assistance of her passenger, who was using a GPS device, to advise her where to go and where to turn left. Her passenger did not tell her to turn on Ritson Road so she did not turn there; instead her passenger told her to turn on Cadillac Avenue, so that is where the defendant made her left turn. Additionally, her testimony provided in cross-examination—that she was not often in downtown Oshawa and was not that familiar with all of its one-way streets—contradicted her statement provided in examination-in-chief that she knew the roads in this area.

[19] Secondly, the defendant stated that Cadillac Avenue was only 100 to 150 feet east of the medical supply store and in this short distance she accelerated to 60 kilometres per hour; then, 20 feet before the intersection at Cadillac Avenue, she began to slowly decelerate from 60 to 20 kilometres per hour. I am not satisfied that Cadillac Avenue is only 100 to 150 feet east of the medical supply store, nor that acceleration from zero to 60 kilometres per hour can be made in so short a distance. Nonetheless, even if this could be accomplished, more troubling is the gradual slowing from 60 to 20 kilometres per hour in a distance of only 20 feet. Such a deceleration in these 20 feet would not be gradual, as alleged, and in the moderate amount of traffic around her, such quick deceleration would not constitute conduct consistent with a left-turn movement made in safety.

[20] The distance from 242 King Street East (the former site of the Ontario Court of Justice Oshawa Courthouse) to Cadillac Avenue is not 100 to 120 feet, as stated by the defendant, but is close to 750 metres east of the Durham Medical Supply store. Instead, Ritson Road is a major north-south route, is the first cross street to the east and is about 70 metres to the east of the medical supply store. The intersection of Ritson Road and King Street is controlled by traffic control signals. It is one of several north-south roads crossed by motor vehicles travelling along King Street, prior to reaching Cadillac Avenue. None of this coincides with the evidence provided by the defendant.

[21] Finally, the defendant testified that she intended to turn left onto Cadillac Avenue, as she had a friend living on this street. This contradicts her statement that she turned left on Cadillac Avenue because her passenger was using a GPS and told her to turn left onto Cadillac Avenue. Her evidence changed again when she stated that she did not turn onto Ritson Road because she simply did not think of it, and not because she was familiar with Cadillac Avenue when a friend lived.

[22] Therefore, for the reasons provided, I reject the defendant's evidence and accept that of Ms. Norman. I am satisfied that the defendant was not familiar with the area, listened to the instructions to turn left provided by her passenger, moved quickly from the lane to the right of Lane 1 along King Street, in front of Ms. Norman's vehicle, cutting across Ms. Norman's path to make a left turn onto Cadillac Avenue. Moreover, by decelerating in such a short distance before the intersection, the defendant did not first make sure that such a left-hand turn could be made in safety. Although the damage to both vehicles may be consistent with either version of the events, in rejecting the defendant's version of events for the reasons I have provided and accepting Ms. Norman's testimony, I find the damage to the vehicles to be in accordance with Ms. Norman's recounting of the events. I am not satisfied that this conduct by the defendant in turning left at the intersection of King Street and Cadillac Avenue in Oshawa constitutes making a left turn in safety.

V. CONCLUSION

[23] Having applied the principles of R. v. W.D., supra, on the totality of the evidence I do accept, I am satisfied beyond a reasonable doubt that, on June 28, 2012, in Oshawa Ontario, the defendant did not first see that her left turn off of King Street onto Cadillac Avenue could be made in safety. No defence of due diligence or other defence has been made out on a balance of probabilities. Therefore, I find the defendant guilty of 'turn not in safety', contrary to subsection 142(1) of the Ontario Highway Traffic Act. There will be a conviction registered with the Ministry of Transportation.

Released: March 14, 2013

Signed: "Justice of the Peace M. Coopersmith"